IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.8194/2014 (MV) CONNECTED WITH MFA NO.7784/2014 (MV) IN MFA NO.8194/2014 BETWEEN 1. N. GIRIJA, W/O. NATRAJ, AGED 56 YEARS, 2. KUM. SANJANA, D/O. LATE SENDIL KUMAR, AGED 12 YEARS, (APPELLANT NO.2 IS MINOR, REP. BY HER GRAND MOTHER APPELLANT NO.1.
N. GIRIJA, W/O. NATRAJ) 3. POORNIMA, W/O. RADHAKRISHNAN, SR./LATE SENDIL KUMAR, AGED 34 YEARS, 4. SRIDEVI, W/O. MALLIKARJUN, SR./O LATE SENDIL KUMAR, AGED 32 YEARS, ALL ARE R/AT NO.1490, 9TH CROSS, 2ND STAGE, SRIRAMPURA, NEAR NAIDU STORES, MYSORE-560 021. ... APPELLANTS (BY SRI. E.P. RAGHAVENDRA FOR SMT. GAYATHRI RAVI SHANKAR, ADVOCATE) 1. THE NEW INDIA ASSURANCE CO. LTD., NO.144, UNITY BUILDING ANNEX, MISSION ROAD, BANGALORE-560 027.
2. MR. CHANNAPPA, NO.221, ANJANAPURA, KANAKAPURA MAIN ROAD, BANGALORE-560 062. ... RESPONDENTS (BY SRI. K.S. LAKSHMINARASAPPA FOR B.C. SEETHARAMA RAO, ADVOCATE FOR R-1, R2 SERVICE OF NOTICE IS DISPENSED WITH AS PER THE ORDER DATED 01.02.2019) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.08.2014 PASSED IN MVC NO.6910/2012 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA NO.7784/2014 BETWEEN MRS. SANDRA JOSEPHENE MONTEIRO, W/O. RICHARD DOMNIC MONTEIRO, AGED 39 YEARS, R/AT NO.50, 2ND CROSS, 2ND STAGE, GONGOTHRI LAYOUT, MYSORE-570 009. ... APPELLANT (BY SRI. E.P. RAGHAVENDRA FOR SMT. GAYATHRI RAVI SHANKAR, ADVOCATE) 1. THE NEW INDIA ASSURANCE CO. LTD., NO.144, UNITY BUILDING ANNEX, MISSION ROAD, BANGALORE-560 027.
2. MR. CHANNAPPA, NO.221, ANJANAPURA, KANAKAPURA MAIN ROAD, BANGALORE-560 062. ... RESPONDENTS (BY SRI. K.S. LAKSHMINARASAPPA FOR B.C. SEETHARAMA RAO, ADVOCATE FOR R-1, R2 SERVICE OF NOTICE IS DISPENSED WITH AS PER THE ORDER DATED 23.01.2017) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.08.2014 PASSED IN MVC NO.6911/2012 ON THE FILE OF THE III ADDITONAL SENIOR CIVIL JUDGE, MACT, COURT OF SMALL CAUSES, BANGALOR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, the same are taken up for final disposal at the consent of both the learned counsel.
MFA No.8194/2014 is filed by the claimants seeking enhancement of compensation for the death of one N. Sandil Kumar in the road traffic accident which occurred on 26.08.2012 and MFA No.7784/2014 is filed by the claimant who sustained injuries in the said accident.
2. I have heard the learned counsel for the appellants/claimants and the learned counsel for the respondent No.1 – Insurance Company.
3. The brief facts of the case are that on 26.08.2012 at about 12.50 pm., the deceased N. Sandil Kumar was traveling in a car bearing registration No.KA-09-Z-9206 on Madikere-Mysore Road along with his two daughters and one Sandra Josephene Monteiro, appellant in MFA No.7784/2014. The deceased Sandil Kumar was driving the said car. When they reached near Bharath Mata Convent, a tempo traveler bearing registration No.KA-05-B-104, by driving the said vehicle in a rash and negligent manner dashed against their car. Due to the said accident, Sandil Kumar sustained grievous injuries and died at the spot. The other inmates of the car sustained simple as well as grievous injuries. The appellant in MFA No.7784/2014 was shifted to BGS Global Hospital, Mysore for treatment.
MFA NO.8194/2014 4. The appellants-claimants are the mother, daughter and two married sisters of the deceased. They claimed a total compensation of Rs.30 Lakhs for the death of Sandil Kumar in the accident. Appellant No.1 Smt. N. Girija was examined as PW-1. Documents were produced and marked to establish the income of the deceased apart from FIR, charge sheet and other documents to prove the accident and the death of Sandil Kumar. The claim petition was contested by the Insurance Company. However, except marking Ex.R-1 – insurance policy no other documents were marked in evidence and no witnesses were examined on behalf of the respondents.
5. The Tribunal after considering the oral and documentary evidence on record, awarded a total compensation of Rs.16,04,000/- for the death of Sandil Kumar with interest at 8% per annum.
6. Seeking enhancement of compensation awarded by the Tribunal, the learned counsel appearing for the appellant contended that the Tribunal while adopting the multiplier, has taken the age of the mother instead of taking the age of the deceased, which is contrary to the law laid down by the Hon’ble Apex Court in the case of Munnalal jain vs Vipin Kumar Sharma reported in (2015) 6 SCC 347. Accordingly, he submits that the compensation awarded under the head ‘loss of dependency’ deserves to be enhanced. He further submits that the Tribunal has awarded only a sum of Rs.20,000/- under conventional heads. Accordingly, he seeks to enhance the total compensation by modifying the judgment and award passed by the Tribunal.
7. The learned counsel for the insurance company on the other hand justified the awards contending that the same is just and reasonable and seeks to dismiss the appeal.
8. The accident in question involving the tempo traveler bearing registration No.KA-05-B-104 and actionable negligence on the part of the driver of the said vehicle is not in dispute. It is also not in dispute that the said vehicle was insured with the Respondent No.1-Insurance Company.
9. The Tribunal while calculating the loss of dependency has considered the age of the mother and adopted ‘11’ as the multiplier, which is not proper. The deceased was a bachelor and he was aged about 32 years and therefore, the appropriate multiplier to his age is ’16. The income of the deceased having assessed by the Tribunal at Rs.16,000/- per month and after adding 50% of the income and deducting ½ of the income towards his personal expenditure, the total compensation to which the claimants are entitled towards ‘loss of dependency’ would be Rs.23,04,000/- (Rs.12,000x12x16).
10. The Tribunal has awarded only a sum of Rs.20,000/- towards loss of love and affection and towards transportation of dead body. Under the conventional heads namely, loss of estate and funeral expenses, the claimants are entitled for a sum of Rs.40,000/- per month. Another sum of Rs.30,000/- is awarded towards ‘loss of love and affection’. In all, the claimants are entitled for a total compensation of Rs.70,000/- towards ‘conventional heads’. Hence, the appellants are entitled for a total compensation of Rs.23,74,000/- as against Rs.16,04,000/- awarded by the Tribunal.
MFA NO.7784/2014 The appellant is injured. Before the Tribunal, a total compensation of Rs.15 Lakhs was sought for the injuries sustained by the appellant in the accident. According to the appellant, she was working as a teacher and earning a sum of Rs.25,000/- per month.
11. The learned counsel for the appellant would submit that due to the accident, the appellant has sustained 25% disability to the whole body and therefore, he submits that the appropriate compensation may be awarded towards ‘loss of income due to disability’. He would also submit that the total compensation awarded under other heads are also meager and need to be enhanced.
12. It is the case of the appellant that she was working as a teacher and earning a sum of Rs.25,000/- per month. The appellant who is examined as PW-2 has produced and marked the salary certificate as Ex.P-21 to establish her salary. However, the person who had issued the said certificate had not been examined. No other convincing evidence is adduced to establish the salary of the appellant.
13. According to PW-3, the appellant has suffered 25% disability to the whole body. PW-3 is not a treated doctor and he has not examined the injured immediately after the accident. From the evidence of PW-3, it reveals that the appellant was still working in the school and there is nothing to show that on account of disability, she lost the job or there is any loss of income. On the other hand, the evidence and material on record disclose that she continued with the same job.
14. The medical evidence goes to show that the appellant was admitted as an inpatient at Appolo BGS Global Hospital, Mysore, from 26.08.2012 to 31.08.2012 for a period of six days. Ex.P-23 and 24 are the x-ray and examination letter report. As per the evidence of PW-3, the appellant sustained fracture zygomatic arch on left side and undisplaced fracture anterior and posterolateral walls of left maxillary sinus. PW-3 has stated that the appellant was treated as an inpatient and underwent surgery of closed reduction of left zygoma and there is a disability of 25% with respect to the whole body.
15. Considering the aforesaid medical evidence on record, I deem it appropriate to award a total sum of Rs.50,000/- towards disability suffered by the appellant. The compensation awarded by the Tribunal under all other heads is just and reasonable. Accordingly, the appellant is entitled for a total compensation of Rs.2,06,000/- as against Rs.1,56,000/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER MFA Nos.8194 and 7784 of 2014 are allowed in part.
The appellants-claimants in MFA No.8194/2014 are entitled for a total compensation of Rs.23,70,000/- as against Rs.16,04,000/- awarded by the Tribunal.
The appellant-claimant in MFA No.7784/2014 is entitled for a total compensation of Rs.2,06,000/- as against Rs.1,50,000/- awarded by the Tribunal.
The enhanced compensation shall carry interest at 6% per annum from the date of petition till its realization.
Respondent No.2-Insurance Company is directed to deposit the entire amount before the jurisdictional Tribunal within a period of four weeks from the date of receipt of the copy of this judgment.
In view of disposal of the appeals, I.A.No.1/2018 is disposed of.
Sd/- JUDGE snc